The two papers have very different definitions of what it means to replace a constitution. Cordeiro, for example, dates Argentina’s constitution to 1853. (Page 6.) Negretto, on the other hand, dates the current constitution to 1994. Who is right?
Negretto uses two definitions for a “new” constitution. First, did the framers claim that it was new? Second, in cases of doubt, were the changes enacted by a constitutional convention?
The first definition is a problem for Argentina. You can find popular references to the “Constitution of 1994,” but the callers of the constitutional conventional of 1994 were very explicit that the purpose was to amend the existing constitution. In fact, the text of the Congressional resolution calling for the convention starts with: “It is declared necessary the partial reform of the national constitution of 1853 including the amendments of 1860, 1866, 1898 and 1957.”
It should be noted that all of the above-mentioned reforms were passed by means of constitutional conventions called by Congress.
Moreover, it should be noted that there was no way to change the Argentine constitution without calling for a convention! Here is a translation of Article 30 of the constitution as it stood before the 1994 reform: “The Constitution can be amended in all or some of its parts. Congress shall declare the need for reform by a two-thirds vote of its members; but no amendment shall be carried out without a Convention called for that effect.”
As for the 1994 reform, they held elections to the required Convention on April 10, 1994. Congress set out the terms of the election in Article 10 of the resolution calling for the amendments. The Peronists received 37.7% of the vote and 44.6% of the seats; the Radicals got 19.9% of the vote and 24.6% of the seats. (See page 26.) The convention then put meat on the bones of the reform that Congress had passed.
It seems to me that Argentina is still governed by the Constitution of 1853 and has, in fact, amended its magna carta rather less than us Americans.
In short, Negretto is wrong. Oh, he is right by his own definition ... but that definition implies that the only way to amend the Argentine constitution is to replace the Argentine constitution. Since the Argentine congress can and does constrain constitutional conventions, that does not seem to be a reasonable definition.
I do not know enough about the other cases in his data set, but I would worry that his results depend on similar arbitrary definitions.